Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al
Filing
609
Opposition to SFFA's Oral Motion to Admit P438 and P588 by President and Fellows of Harvard College. (Folan, Karen)
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MASSACHUSETTS
BOSTON DIVISION
STUDENTS FOR FAIR ADMISSIONS, INC.,
Plaintiff,
v.
PRESIDENT AND FELLOWS OF HARVARD
COLLEGE (HARVARD CORPORATION),
Civil Action No. 1:14-cv-14176-ADB
Defendant.
HARVARD’S OPPOSITION TO SFFA’S MOTION TO ADMIT P438 AND P588
On October 25, 2018, Day 9 of trial, Plaintiff Students for Fair Admissions, Inc.
(“SFFA”) orally moved to admit Plaintiffs’ Exhibit 438 and Plaintiffs’ Exhibit 588, two thumb
drives containing voluminous information from the database of the Harvard College Office of
Admissions and Financial Aid. Day 9 Tr. 8:13-15. Federal Rule of Evidence 1006 gives this
Court ample discretion to exclude those exhibits, and it should do so.
P438 contains 475 native Excel spreadsheets produced by Harvard, many of which
include hundreds of data points about 200,000 applicants to Harvard. Just one of those
spreadsheets, if printed out, would span 18,000 pages. P588 is the dataset used by Professor
Arcidiacono, which contains the same individualized student data in a different format. It
comprises four gigabytes of individualized applicant data and requires specialized software to
open it and specialized training to use it.
The two exhibits contain extraordinarily sensitive personal information about applicants
to Harvard College. They contain, for example, information about applicants’ high schools,
grades, test scores, extracurricular activities, parents’ occupation and education, and the profile
1
ratings the Admissions Office assigns to various aspects of application materials. Although the
students’ names and dates of birth are not included, simple online searching can quickly reveal
the identity of many students associated with the information in the exhibits; for example,
searches will reveal students associated with specific high school sports teams or extracurricular
activities. For these reasons, these exhibits have been designated HIGHLY CONFIDENTIAL—
ATTORNEY’S EYES ONLY, and are subject to the protective order entered by the Court in this
case.
There is no good reason to admit those exhibits, and ample reason to exclude them.
Federal Rule of Evidence 1006 provides:
The proponent may use a summary, chart, or calculation to prove
the content of voluminous writings, recordings, or photographs that
cannot be conveniently examined in court. The proponent must
make the originals or duplicates available for examination or
copying, or both, by other parties at a reasonable time and place.
And the court may order the proponent to produce them in court.
Fed. R. Evid. 1006 (emphasis added). As the language of the final sentence of the Rule
indicates, this Court has discretion to exclude voluminous information underlying summaries
that have themselves been admitted into evidence.
The First Circuit has made clear that no rule requires the Court to admit voluminous data
underlying summary exhibits. As the Circuit explained in Air Safety, Inc. v. Roman Catholic
Archbishop of Boston, 94 F.3d 1 (1st Cir. 1996), “evidence underlying Rule 1006 summaries
need not be admitted into evidence. Indeed, such an interpretation of the rule would negate its
explicit grant of discretion to the trial judge to order the underlying documents produced in
court.” Id. at 7 n.14 (citations omitted). In United States v. Milkiewicz, 470 F.3d 390 (1st Cir.
2006), the Court reiterated its holding that “evidence underlying summaries need not be admitted
into evidence” and explained that “in most cases a Rule 1006 chart will be the only evidence the
fact finder will examined concerning a voluminous set of documents.” Id. at 396. Accord
United States v. Bakker, 925 F.3d 728, 736-737 (4th Cir. 1991) (rejecting argument that Rule
1006 required admission of data underlying summary exhibits, and finding no basis for that data
to be admitted when parties and district court had the summary evidence).
In this case, SFFA has introduced, without objection from Harvard, 15 charts
summarizing information from the two exhibits. See P617-P631; Day 9 Tr. 8:16-17. Those
charts, as well as Harvard’s summary exhibits and the extensive expert testimony that has been
presented and will be presented during the trial, provide the Court with the information that it
needs to understand the parties’ arguments about the Harvard admissions office data; SFFA
indicated that it would rely on the summary charts to explain the underlying data, see Day 1 Tr.
12:19-23, and the Court explained at trial that it did not intend to inspect the underlying data, see
Day 9 Tr. 11. The truth-seeking function of this trial would therefore not be advanced by
admission of the underlying data.
By contrast, admission of the underlying data, in addition to cluttering the record with
irrelevant information, would pose a risk of serious harm to the privacy interests of applicants to
Harvard. These exhibits contain highly sensitive information in which students reveal personal
and often identifying details about their personal lives. Applicants to Harvard expect that
Harvard will maintain this information in strict confidence, and Harvard does so. That
information, if admitted, will be the subject of intense, and perhaps commercial or prurient,
interest by others seeking access to the data. Given the students’ weighty privacy interests, and
the absence of any need for the data to be admitted, P438 and P588 should be excluded.
Respectfully submitted,
William F. Lee (BBO #291960)
Felicia H. Ellsworth (BBO #665232)
Andrew S. Dulberg (BBO #675405)
Elizabeth Mooney (BBO #679522)
Sarah R. Frazier (BBO #681656)
WILMER CUTLER PICKERING
HALE AND DORR LLP
60 State Street
Boston, MA 02109
Tel: (617) 526-6687
Fax: (617) 526-5000
william.lee@wilmerhale.com
felicia.ellsworth@wilmerhale.com
andrew.dulberg@wilmerhale.com
elizabeth.mooney@wilmerhale.com
sarah.frazier@wilmerhale.com
/s/ Seth P. Waxman
Seth P. Waxman (pro hac vice)
Paul R.Q. Wolfson (pro hac vice)
Danielle Conley (pro hac vice)
Brittany Amadi (pro hac vice)
Daniel Winik (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave. NW
Washington, D.C. 20006
Tel: (202) 663-6800
Fax: (202) 663-6363
seth.waxman@wilmerhale.com
paul.wolfson@wilmerhale.com
danielle.conley@wilmerhale.com
brittany.amadi@wilmerhale.com
daniel.winik@wilmerhale.com
Debo P. Adegbile (pro hac vice)
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
Tel: (212) 295-6717
Fax: (212) 230-8888
debo.adegbile@wilmerhale.com
Dated: October 26, 2018
Counsel for Defendant President and
Fellows of Harvard College
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